G. Thayer Williamson Your Drug Crime Attorney

Civil Forfeiture: What is It, and Do I Have a Defense?

What is civil forfeiture? In a nutshell, the police and the prosecutor have seized your home, car, cash, or other property based upon the suspicion that the property in question bas been used in or involved in criminal activity. The property is sold at auction. Making matters worse, law enforcement agencies get to keep the cash and other assets that they seized giving them a direct and tangible incentive to police for profit rather than seeking justice. Texas law established a perfect storm of circumstances that invite forfeiture abuse by law enforcement. First, Texas allows law enforcement to place forfeiture proceeds directly into their budget, including bonus's to employees. Second, Texas uses a "preponderance of the evidence" standard to determine whether a particular seizure is lawful and valid. This standard is in stark contrast to the "beyond a reasonable doubt" standard applied in criminal prosecutions. Third, and most importantly, Texas places the burden on the owner of the seized property to prove his or her innocence.

Now that you know the deck is stacked in favor of the State and law enforcement, you might be wondering, can a defendant win a forfeiture case? Absolutely!!! Texas law creates a list of statutory and non-statutory defenses to an attempted forfeiture.

1. Statutory defenses:

a) innocent owner defense: this requires the owner of the property to prove "by a preponderance of the evidence" that the owner of the property did not know that the property would be used in the commission of a crime. The innocent owner is the most commonly used defense and the most viable defense in Texas.

b) Family Violence: the fact that family violence occurred is NOT a defense. This defense exists when a victim of family violence, as defined by Family Code Chapter 71.01 was unable to prevent their spouse from committing the act giving rise to the forfeiture.

c) Dismissal or acquittal of the related criminal charges: evidence of an acquittal raises a presumption that the property is not forfeit-able.

d) Third party bailee claims: this defense is so rarely used that it doesn't deserve discussion.

2. Non-Statutory Defenses:

a) Entrapment

b) Controlled substance analogue: this is a rarely used defense. In short, this involves an analogue of a controlled substance that appears to be a controlled substance, but is chemically not a controlled substance.

c) Illegally obtained evidence: this defense is self explanatory.

d) Legitimate source of income: this applies to situations involving sums of cash. When a defendant offers a legitimate source of income to explain the existence of the cash, the State must disprove the claim by a preponderance of the evidence.

This article is not intended to be an exhaustive treaty on the subject of civil forfeiture, rather it is intended to be a summary of the laws involved. If you have any questions about a forfeiture case, a drug case, or a criminal case please call the law office of G. Thayer Williamson. I have been licensed in Texas since 2000, and I practice in Dallas and the surrounding areas.